Wednesday, November 23, 2011

This reference is over 1300 paragraphs (300+ pages) and requires sustained engagement. But as I've spent the majority of the afternoon wading through it, I thought I would do a brief blog post.

Basically, I find the decision very disappointing. I think the judge's use of "Western civilization and its values" as a benchmark for criminal law is highly problematic. I find it shocking that he could possibly conclude that the intent behind the criminalization of polygamy in 1892 was anything other than discriminatory and bigoted. The idea that it has always been motivated by concern for harm to women and children is... risible. Quick reality check - marital rape was not a crime in 1892 (indeed, it was not addressed until 1983). Yet we're supposed to accept such a benevolent purpose?

With respect to the religious freedom argument, I have always maintained that religious freedom cannot ground an exemption to an otherwise valid criminal law. But this criminal law is not valid. Justice Bauman accepts that polygamy is constitutive of "unique" harms that are somehow separate from other intimate relationships, and these harms are experienced profoundly by women and children. Yet, he admits that "polygamy" includes both polygyny and polyandry, and he rejects the idea that proof of harm is required!

The harms of polygamy are the harms of patriarchy. The fact that we are somehow only concerned about those harms insofar as they exist in plural relationships tells us all we need to know about whether the criminal prohibition is principled and justified.

So, on the whole, a very bad result...and the copious (and wrong-headed) findings of fact will make fair appellate review very challenging.

In fact, the question would have been preposterous even a few years ago. Polygamy laws, it seems, have always been with us. The idea that marriage can mean anything other than the union of two people (not so long ago, "one man and one woman") strikes many as absurd, even dangerous.

Yet, that is precisely the issue that will be the focus of Chief Justice Bauman's opinion later today. And it is clear that there are, indeed, numerous arguments that suggest that continuing to criminalize polygamy is no longer acceptable.

A commonly heard challenge to the polygamy law is that it discriminates against those who seek to be in plural relationships out of a personal religious conviction. Section 2(a) of the Charter guarantees everyone the fundamental freedom of conscience and religion. To the extent that someone sincerely believes that a polygamous union will assist him or her in following a particular faith system, then polygamy becomes a protected religious choice. Importantly, it does not matter that the belief may be odd, an outlier or even rejected outright by other members of the same faith. It is still protected, though it can be subject to reasonable limits. Those limits will depend on the scope of the offence in question, its purpose and its impact on the people it catches.

The polygamy law is also challenged on the ground that it is vague. The Criminal Code does not define polygamy, and it includes as part of the offence a separate state of being in "a conjugal union involving more than one person at a time." While "polygamy" could perhaps be defined as being "married" to more than one person (presuming of course that one could decide what counts as a "marriage") the term "conjugal union" is highly problematic. Does it require people to actually live together? Must there be a sexual relationship, or merely one of dependence? If children are involved, does that change the analysis? What weight should be given to the intent of the parties?

Obviously criminal laws use broad, even diffuse, terms all the time and that by itself does not make them vague. Ultimately, though, laws must be precise enough to provide guidance to those who must apply and interpret them, namely, police, Crown prosecutors and judges. One of the challenges with the polygamy law is that it has been so rarely used that it is difficult to even know what present-day mischief the law is trying to address.

That brings us to another problem with polygamy - the basis on which it was criminalized in the first place. The law originally was directed at Mormons to keep them from emigrating to Canada from the US. Indeed, until 1955 the Criminal Code specifically mentioned "Mormon spiritual or plural marriage." Today, that kind of targeted use of the criminal law based on nothing but antipathy towards a particular group automatically violates the Charter, as well it should.

The offence no longer singles out Mormons, and the federal government has argued that it now represents a more conventional use of the criminal law to uphold certain moral values. In that case, the issue is whether criminalizing families is a proportionate means of upholding those values. The law carries a possible prison sentence of five years, it applies to everyone in the relationship and it concerns a fundamental life choice: the way in which we constitute our families. Does it strike the right balance?

The other aspect of polygamy, of course, is the equality of women. We have all heard the harrowing stories of sexual exploitation, of child marriage and of forced child-bearing. Polygamy commonly is associated with an extremely harmful form of patriarchal dominance, one that denies women education, social support and true choice. And, of course, one cannot forget the position of children born into these communities. Don't these people deserve all of the help and support we can give them?

One difficulty is that it is not at all clear that criminalizing the family unit - as opposed to specific harms that occur within that family unit - achieves anything other than to further isolate and marginalize those who are most vulnerable. Another difficulty is knowing in advance which polygamous unions given rise to these harms and which do not. And, finally, if the state's true concern is the exploitation and abuse of women and children, why on earth would it want to limit its scope to polygamy? Wouldn't it make more sense to seek to address those harms no matter how many persons are in a marital relationship?

It is understandable why so many are so invested in saving the crime of polygamy. But, as we contemplate this serious issue, we must be careful to always keep in mind the underlying principles of our society and legal system. We must be willing to examine polygamy in all its aspects, and to give fair consideration to troubling questions.

In advance of BC Supreme Court Chief Justice Bauman's opinion in the Reference re: Criminal Code, s.293 I thought I would provide a brief primer of how we came to be here. In a second posting, I will describe the legal issues.

Section 293 of the Criminal Code makes it a crime to be a party to, or to assist in the solemnization of, "any form of polygamy" or "a conjugal union with more than one person". It has been a part of our criminal law since the Code was first enacted in 1892, though it used somewhat different language. Yet it has not been used more than a handful of times, and not at all in the last fifty years.

In recent years, the British Columbia government has been interested in resurrecting the use of the polygamy law against people like Winston Blackmore who is one of the "leaders" in the community of Bountiful. Bountiful follows a particular branch of the FLDS, and is described as a breakaway Mormon splinter group. Polygamy is openly practiced, and a number of men are known to have many wives and dozens of children. There are conflicting accounts of what life is actually like in Bountiful, but women who have left the community say that they routinely were subject to exploitation, social isolation and forced childbearing.

The problem faced by the Attorney General of BC is that his own lawyers were convinced that section 293 is unconstitutional - that it violates the Charter. The Attorney General tried to proceed with a special prosecutor, but had to retain three of them before finding one who would agree to charge the men in Bountiful. After the indictments were laid, the BC Supreme Court found that the Attorney General had acted illegally by, in essence, shopping for a prosecutor to do his bidding. The Court then quashed the indictments.

The Attorney General then did what many thought should have happened all along; he decided to proceed via a reference to the BC courts, asking them whether section 293 is constitutional. References are a special kind of legal proceeding where a court is asked to decide legal questions in the absence of an actual case. They are fairly common in Canada, and while they do not technically have the force of law (they are considered merely "advisory") they nonetheless carry great weight.

Normally, references are heard in appellate courts before panels of judges. Unusually, the Attorney General decided to refer the matter to the BC Supreme Court - a trial level court. This means that it was heard before a single judge - Chief Justice Bauman. The Attorney General decided to take this route (a legal first) because he wanted to have a trial-like proceeding with witnesses, experts and other kinds of evidence.

The reference began in late 2010 and lasted six months. It involved numerous intervenors, thousands of pages of documents and dozens of witnesses. Regardless of the outcome today, the Chief Justice deserves appreciation for undertaking this monumental task.

Monday, November 21, 2011

The Muslim Law Students Association (MLSA) and the Women's Legal Education and Action Fund (LEAF) invite you to a legal lecture and discussion on the upcoming hearing of R. v. N.S.(Supreme Court) this Thursday!

Date: November 24th, 2011

Time: 12pm-1pm

Location: University of Ottawa, Fauteux Hall, Room 232

The topics will include:

• Why was a sexual assault complainant asked to unveil beforebeing allowed to testify?• Are judges allowed to assess the validity of a witnesses’ religious beliefs?• Is demeanor evidence a reliable assessment of credibility?

Friday, November 18, 2011

Since its formal launch early this year, the international community has celebrated the creation of UN Women, the new United Nations agency dedicated to furthering gender equality and women’s empowerment worldwide. UN Women has a start-up budget of $500 million, an amount more than double the total funding of the four UN bodies amalgamated to form the new agency, and is governed by a 41-member Executive Board headed by former Chilean President Michelle Bachelet. At the rank of under-secretary-general, Bachelet has more clout than any official tasked with gender equality has ever enjoyed in the UN system. Applauding the agency as proof of renewed dedication by the UN to prioritize gender equality, Secretary-General Ban Ki-moon pledged that the UN Women will “significantly boost UN efforts to promote gender equality, expand opportunity, and tackle discrimination around the globe.”

Beyond its symbolic allure, however, lurks a question the ovations for UN Women largely overlook: How will the new agency approach the practical work of gender equality in the global context? Can UN Women remedy the mistakes and avoid the pitfalls of past UN efforts to combat gender inequality?

For decades, the UN has touted gender mainstreaming as the key to unlocking gender equality in countries around the world. In principle, gender mainstreaming includes formal consideration of the gender implications of UN programs worldwide, promoting women’s participation in domestic decision-making structures, and attempting to increase women’s representation inside the UN and other international institutions.

In practice, however, gender mainstreaming has boiled down to a one-size-fits-all policy of ‘add women and stir.’ Limited attention is paid to the particular needs of women and girls in the diverse communities where UN gender mainstreaming plays out. In a recent survey of 100 civil society organizations working in 75 countries, nearly half reported that the UN does not understand the daily realities of women on the ground. Women have made up only seven percent of negotiators in major UN peace talks in spite of Security Council Resolution 1325, intended to amplify the role of women in conflict resolution. At the UN itself, women make up more than half of employees at the lowest levels, but occupy less than 26% of top jobs. Most discouraging is the lack of progress on the UN Millennium Development Goals, designed to reduce poverty, disease, inequality and other obstacles to development, where major indicators on women and girls lag well behind targets in other areas.

To be sure, the UN faces a unique set of challenges in pursing global gender equality while balancing the varied interests of member states, all on a limited budget over which it has little control: to date, UN Women has raised only $200 million in member state donations. Besides, gender mainstreaming has made some strides toward improving the visibility of women in the international arena, including the formal inclusion to the UN agenda of violence against women and the promulgation of Security Council Resolution 1820, recognizing sexual violence during conflict as a matter of international peace and security. Unfortunately, these successes are the exception, not the rule. According to Paula Donovan, co-director of the HIV/AIDS advocacy organization AIDS-Free World, “It’s been awfully easy [for the UN] to get away with expressing interest in achieving women’s rights without actually demonstrating commitment to achieving women’s equality. This is a hard habit to break.”

Indeed. Despite the recognized shortcomings of gender mainstreaming, there is no indication that UN Women will take a different tack going forward. Rather than falling back on old habits, UN Women should take advantage of its new leadership and increased funding to overhaul the gender mainstreaming approach. To carefully tailor its country-specific policies to the needs of local communities, the new agency should strengthen connections with local organizations. A first step in this regard would be to reserve a meaningful number of seats on the 41-member Executive Board of UN Women for members of civil society groups. Closer to home, UN Women should spearhead the renovation of hiring and promotion policies to recruit and retain a diversity of women in the UN system.

In her first address as the head of UN Women, Michelle Bachelet told the General Assembly that gender equality “must be more than a mantra. It must become a lived reality for women and men and boys and girls in all countries.” The rhetoric is undeniable. The problem faced by Bachelet and UN Women is that gender mainstreaming simply isn’t up to the task of taking gender equality from rhetoric to reality.

Jenna McGill is a Professor at the University of Ottawa Faculty of Law.

- identify legal parents in cases of assisted human reproduction.-creates a new class of protection order.-applies the rules of property division to common-law spouses who separate.-defines violence to include emotional and phsychological abuse.

Monday, November 14, 2011

Almost two years ago, we held a conference at uOttawa commemorating the tenth anniversary of the Jane Doe decision on sexual assault. After two long, draining days talking about rape, I sat with a group of weary feminists in an emotionally-charged conversation about where to go next. We were depleted and demoralized, tired of fighting the same battles. One of our feminist icons, raging against the continued stereotyping of raped women, insisted that those amongst us who have experienced sexual violence say so, just like women came forward with their stories of abortion and domestic violence in other eras. She was angry that women still bear the stigma and shame of rape. She argued we could fight it, and remind everyone that rape affects us all, if we only went public. Stop being academic about it she said: make it personal. Tell our stories. Don’t keep rape a secret.

A few weeks ago, Rick Mercer’s usually comic one-minute weekly rant on “This Hour Has Twenty-Two Minutes” turned serious in a way that reminded me of that moment. Mercer reacted to the suicide of Ottawa teen Jamie Hubley with a challenge to those in the public eye. Mercer argued it is an obligation for gay and lesbian public figures to “come out” and to stand as role models for gay youth. The queer community has a special responsibility to confrontthe bullying and homophobia that causes so much heartache, and that contributed to Jamie Hubley’s despair. Mercer was immediately lauded and lambasted. Kate Heartfield’s column agreed with him that “Gay people have one powerful weapon straight people do not: the power of their example.” Others argued he was wrong to shame public figures into coming out by implying they are cowardly if they do not. An editorial in the “Globe and Mail” on October 28th stated it pretty bluntly: Mercer is “wrong, terribly wrong, about the moral obligation he would put on gay people in public life.” The editorial recognized that it may “spread tolerance” if gay athletes and soldiers, police officers and politicians “made their orientation known far and wide” but condemned Mercer for placing a special burden on those individuals, a burden “that is on no one else in our society”.

Two days after the Globe editorial, feminist writer and activist Shari Graydon posted a blog with the subject header “Do feminists have an obligation to ‘out’ themselves?”. Like me, Graydon admires those who do come out of the closet, believing it helps to counter stereotypes. She then linked to an article by ForbesWoman contributor Victoria Pynchon about what Graydon described as a “related dilemma”. Pynchon posted on the subject “Will Feminism Hurt Your Career” and described how she disassociated herself from the feminist movement in her first week of law school when she decided, “I just want to be a law student, not a woman, law student. I want to be a lawyer, not a woman lawyer.” And so she laments, “that was the end of my involvement with women’s organizations for thirty years.” She insisted feminists have a more limited job market if their political opinions are public. There are people who won’t hire or retain feminist lawyers. Going public as a feminist, she equivocated, “is a personal, moral decision—one only you can make”.

In early October, 85 year old Harriet Hills Stinson, a prominent member of the Hills Bros. coffee clan, revealed a long-held personal secret: she had in illegal abortion when she was in her 20’s. She told her secret in response to Republican plans to cut funding for family planning and abortion services. She “came out” so to speak at a pro-choice fundraising lunch, and she urged other women who have had abortions to come forward.

What is fair when it comes to private burdens and public declarations? How many of our secrets deserve to be kept, and what are appropriate public expectations when we take on roles as politicians, writers, entertainers or even educators? Would young women fight harder against misogynist laws and practices if more of us told our stories of rape, abortion, domestic violence and sexual harassment? I reacted with overwhelming support for Mercer’s call to the queer community. But it is easier, I realize, to support the telling of other people’s stories. Many of us carry secrets that diminish our own spirits, reinforcing the shame and stigma of being gay, raped, or choosing an abortion. The Globe editorial was wrong about one thing: many of us face special burdens, and Mercer may just have prompted a much wider challenge. The recent disclosures of sexual harassment suffered by female RCMP officers, threw into stark light a culture of abuse and misogyny within the force. Those women are role models to the rest of us who stay silent in the face of discriminatory practices.

Daphne Gilbert is an Associate Professor at the University of Ottawa Faculty of Law.

Thursday, November 10, 2011

Black Law Students’ Association Public Statement

We, the Black Law Students’ Association of the University of Ottawa (BLSA Ottawa), are a network of students devoted to excellence and substantive equality. We belong to a national student federation, the Black Law Students’ Association of Canada (BLSAC), committed to advancing the academic and professional interests of black law students across the country. We are charged with the responsibility of actively creating an environment in which black law students, our colleagues, friends and mentors are supported when subject to oppressive and racially discriminatory conduct.

Consequently, we take this opportunity to address publicly the statements made by Denis Rancourt, a former physics professor at the University of Ottawa, who, on his blog U of O Watch, wrote that Faculty of Law Professor Joanne St. Lewis acted like a “house negro” in response to her assessment of a report done by the Student Appeal Centre (SAC) in 2008 at the University of Ottawa.

Historically, “house negro” was a term used to denote a black slave in the United States and Canada who worked within the home of a slave master and who severed ties with his or her cultural-racial heritage. It was a term used to describe a black person who supported the continued marginalization and enslavement of black people. In the opening lines of his blog post Rancourt writes, “February is Black History Month in Canada and the US. U of O Watch believes that it is the right time not only to honour Black Americans who fought for social justice against masters but also to out Black Americans who were and continue to be house negroes to masters.” Not only does U of O Watch not acknowledge African Canadian identities, it claims to “out” black Americans who are still “house negro” to masters. Black Canadians have a distinctive and complex history that is different to that of the United States. We are not “house negroes” because we actively fight for and continue to rigorously advocate for equality and the advancement of black people.

The SAC Report entitled, “Mistreatment of Students, Unfair Practices and Systemic Racism at the University of Ottawa” documented a finding of systemic racism using undefined data and an unrepresentative sampling of the population. In her assessment Professor St. Lewis stated, “the fact that the report did not succeed in its methodological attempts does not mean that there is not a problem that should be addressed.” She further stated, “when the pool of subjects to be examined is so small it is critically important that the data is evaluated cautiously and evaluated carefully…this does not appear to have been the case here.”

Professor St. Lewis has never stated that there is no racism at the University of Ottawa. The very first recommendation in her evaluation report calls for an independent assessment to determine whether systemic racism plays any part in the Academic Fraud process. As we understand it, her point is that the SAC Report is methodologically flawed and misses the opportunity to meaningfully address structural racial discrimination at the university. As Professor St. Lewis asked in her first recommendation, we support the call for an independent assessment of the academic fraud process to “determine whether systematic racism plays any part in the Academic Fraud process” and an account of what actions SAC has taken since its report was released.

We, BLSA Ottawa, know racism to be a multi-dimensional and nuanced subject area. We firmly plant our roots in anti-racist politics. However, this does not mean that a report that is wanting of substance is to be endorsed because we are people of colour. Students would benefit from an in-depth investigative process to lend credibility to any claim of systemic racism. To declare that the only black female English Common Law professor acted like a “house negro” for merely pointing this out is reprehensible; and we condemn it in the strongest possible terms. Professor St. Lewis has been the strongest and longest-standing mentor available to black law students from Vancouver to Halifax, including here in the National Capital (Region) for over 20 years.

The United Nations declared 2011 to be the International Year for People of African Descent. We, BLSA Ottawa, stand in full solidarity with Professor Joanne St. Lewis, and call on all law students, lawyers and community members to stand united with the black community in our collective effort to oppose all instances of racial discrimination.

Monday, November 7, 2011

Discrimination. It involves treating people negatively because of their race, age, sex, religion, sexual or gender identity. It's a word, that as Canadians, we rarely apply to ourselves. Instead, we like to think that we uphold diversity as an integral part of the fabric of our society. This is not the case in Ontario public schools.

Imagine if tolerance for racial diversity was no longer part of the elementary school curriculum in Ontario public schools? What if, for instance, racial slurs were no longer shunned? Canadians would rightly be worried about the repercussions for children of colour and their families in our publicly funded schools. While racial slurs are shunned in public schools the term ‘gay’ is frequently used as an epithet.

Our curriculum must provide equal support for youth who belong to sexual minorities, and to children from families that include sexual minorities. Homophobia and racism are both forms of discrimination. We should teach grade three students in Ontario that sexual and gender diversity, like racial diversity, are integral parts of the fabric of Canadian society. The freedom to live without discrimination because of your race or sexual orientation are human rights in Canada.

Race and sexual orientation are both protected characteristics under Canada’s constitution. Neither has priority; there are no equality rights that are more or less protected than others. Why, then, is there such an uproar when elementary school teachers are asked to teach our children about equality for sexual minorities? Simply put it is because the equality interests of sexual minorities are frequently treated as less important than others.

Critics would have you believe that by excluding sexual minorities from the public school curriculum we are protecting our inherently straight children from the threat of ‘recruitment’ into a ‘deviant lifestyle’. Haven’t we moved beyond such hollow claims? Extensive international research has concluded that belonging to a sexual minority is not a lifestyle choice, it is an unchangeable personal characteristic like race or ethnicity. One cannot be recruited into being gay, anymore than one can be recruited into being South Asian. The fear of ‘recruiting’ is merely a mask for homophobia, what is really at stake here is the health and human rights of Ontario public school students.

Who is most impacted by treating sexual minorities as less worthy of tolerance and human rights protection? Youth who belong to sexual minorities, and children whose families include sexual minorities. Recent research conducted across Canadian public schools shows that one in four sexual minority students have been physically harassed about their sexual orientation. Three-quarters of sexual minority students feel unsafe in at least one place at their school, such as change rooms, washrooms, and hallways. Half of straight students agree that at least one part of their school is unsafe for sexual minority students. 46 percent of gay and lesbian youth have attempted suicide at least once. The average age of a first suicide attempt is 13 years.

Excluding sexual minorities and their families from the public school curriculum is not going to make them disappear. Silence on issues of sexual and gender diversity can only serve to isolate sexual minorities, and to normalise and perpetuate discrimination.

The introduction of sexual minorities and their families into the elementary school curriculum is widely discussed as a moral issue, because of its inclusion in the sex education curriculum. This criticism is premised on the idea that discussion about sexual minorities necessarily involves discussion about sex. However, belonging to a sexual minority is no more and no less about sex than being heterosexual. Sexual minorities and their families suffer homophobia while they are grocery shopping, learning in public schools, and playing at the playground, places where sex is completely absent. Talking about sexual minorities in elementary school is in large part talking about identity, families, relationships and inclusion rather than sex. It is an issue of human rights, not of sexual morality.

Homophobic bullying and harassment in Canadian public schools is at a crisis level. The Ontario government must introduce progressive school curriculum to begin to turn the tide. Recognising the existence of Canadians who belong to sexual minorities can only help to ensure that human rights in Canada are meaningful for us all.

Angela Cameron is an Assistant Professor in the faculty of Law at the University of Ottawa.